DEAR CARRIE: I have a co-worker who has been employed at the company where we work for 23 years. He works seven hours a day. He used to go out for a cigarette during his 15-minute lunch break without an issue. But the new manager said my colleague is not allowed to do this. Is this legal? — Up in Smoke
DEAR UP: Your question raises several important concerns, including some unrelated to the smoking issue.
First, giving a mere 15-minute lunch break to someone who works seven hours is illegal.
“Indeed, the reader’s employer appears to be violating Section 162 of the New York State Labor Law, which entitles employees to a minimum 30-minute lunch break . . . for shifts six hours or longer,” said employment lawyer Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola.
The employer doesn’t have to pay employees for meal breaks but has to allow them.
But breaks of 20 minutes or less are a different animal: They should be paid, Grimaldi said.
“All breaks of 20 minutes or less are compensable,” he said.
And when the break is on the employer’s dime, the company has some say about what happens during that time.
“If it is a paid break, the employer can prohibit/insist on certain conduct,” Grimaldi said.
It’s worth mentioning that smoking inside the office would, of course, be illegal because that is prohibited by state law, he said.
Another way of looking at the smoking break prohibition is that it may not be as much about smoking on a break as it is about smoking on the employer’s premises, Grimaldi said.
“The employee’s manager may have merely wanted the employee to stop smoking on the employer’s property regardless of whether it occurred during the lunch break,” he said. “In other words, the manager may have expanded the employer’s smoke-free zone to all employer property both inside and outside its facility, which has become commonplace.”
This next remark goes to the heart of your question: If your co-worker had been given both a lunch break and a 15-minute smoking/coffee break for the past 23 years, with the latter now being eliminated, that is lawful, he said.
“New York law requires the . . . meal break but does not require additional smoking/coffee breaks during the workday,’’ he said. “The same is true under federal law. Therefore, such paid breaks can be eliminated.”
You didn’t indicate if your workplace is covered by a union contract. If so, and the contract required a 15-minute break in addition to the meal break, then the manager couldn’t change that requirement unilaterally.
“If such an agreement existed, the manager’s directive would be considered a breach of contract,” Grimaldi said.
One last interesting aspect of the smoking issue: It regards a subsection of labor law that prohibits employers from taking action against employees for the legal consumption of a product when they are not working and are off the employer’s property.
“If an employee is ‘off duty’ — including on an unpaid meal break — and off the employer’s property, I would advise the employer not to restrict the employee from consuming a lawful product such as cigarettes,” Grimaldi said. “Needless to say, it is extremely rare for a New York State employer to impose such a restriction.”